Jennings v. State, A-11231

• Decision Date: 18 October 1950
• Docket Number: No. A-11231,A-11231
• Citation: 223 P.2d 562,92 Okla.Crim. 347
• Parties: JENNINGS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 562

223 P.2d 562

92 Okla.Crim. 347

JENNINGS v. STATE.

No. A-11231.

Criminal Court of Appeals of Oklahoma.

Oct. 18, 1950.

Syllabus by the Court

1. Where the information has not been challenged by demurrer or motion to quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained.

2. Neither the trial court nor this court can change the statutory method of procedure prescribed by the legislature.

3. This court cannot consider questions that were not raised in the trial court as authorized by statute, unless fundamental error prejudicial to the substantial rights of appellant is apparent.

4. The defendant may take advantage of a defective information by demurring thereto before the trial, by objecting to the introduction of evidence on the ground that the facts stated do not constitute a public offense, or by motion in arrest of judgment.

5. Where the trial court cannot clearly see a visible connection between the alleged other offenses to the one charged, he should refuse to admit the other offenses in evidence; but where the other offense or offenses are part and parcel of the same design, scheme and plan, evidence thereof is clearly admissible.

6. Whether the language alleged to have been used by the defendant was profane and calculated to arouse the anger of a person to whom it was addressed, and provoke a breach of the peace, depends upon the relation of the parties, the circumstances under which the language was used, and the manner of the speaker, which are all questions of fact for the jury to determine.

7. Where there is any competent evidence reasonably tending to sustain the allegations of the information, the court should not sustain a demurrer to the evidence.

B. C. Franklin, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.

BRETT, Judge.

This appeal is brought by the plaintiff in error Marvin Jennings, defendant below, from a judgment and sentence of the Court of Common Pleas of Tulsa county, Oklahoma. Jennings was charged by information with the offense of disturbing the peace of Mrs. R. G. Mouser, to which he entered a plea of not guilty, waived a jury, and was tried to the court and found guilty upon which finding, the court fixed his punishment at $100 fine and imprisonment in the county jail for 30 days, and entered judgment and sentence accordingly.

The pertinent part of the charge contained in the information is as follows, to wit: '* * * Gives the Court to understand and be informed that on the 13th day of July, A.D.1948, and prior to the filing of this information in Tulsa County, State of Oklahoma said defendant in said County, and within the jurisdiction of this court, did unlawfully, wilfully, knowingly and wrongfully, disturb the peace of another, to-wit: Mrs. R. G. Mouser by then and there asking the said Mrs. R. G. Mouser for a date contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State.'

The charge contained in the information is predicated upon § 1363, Title 21 O.S.A.1941, the pertinent part of which reads as follows, to wit: 'If any person shall make use of any profane, violent, abusive or insulting language toward or about another person, in the presence or hearing, which language, in its common acceptation, is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault, every such person shall be deemed guilty of a breach of the peace, and, upon conviction thereof, shall be punished by a fine in any sum not to exceed $100.00, or by imprisonment in the county jail not to exceed thirty days, or by both such fine and imprisonment, at the discretion of the court or jury trying the same.'

The defendant's first and second contentions are that the trial court erred in not sustaining his demurrer to the information, and because it failed to state a public offense. The record discloses that the offense was committed on July 13, 1948, and the information thereon filed on July 15, 1948. It further appears that the defendant was arraigned on July 15, 1948, and entered a plea of not guilty to the merits. The case came on for trial on February 28, 1949 and when it was called for trial both the state and the defendant announced ready. Thereafter when the state was about to introduce its evidence the defendant made the following announcement:

'Mr. Franklin: I want to file a demurrer. I would like for the record to show that the plea of not guilty is withdrawn for the purpose of filing the demurrer. I am not going to insist on it. Your Honor can overrule it at this time and give me an exception.

The Court: Let the record show the demurrer is filed, overruled and exception allowed.'

The record further discloses that the demurrer was not filed until the next day. We are of the opinion that under the authorities this objection to the information came too late. As was said in McDermott v. State, 35 Okl.Cr. 416, 418, 250 P. 810, 811: 'It has been frequently held by this court that where a defendant goes to trial without demurring to the indictment or information and objects for the first time when the state offers testimony the objection should be overruled, if by any intendment or presumption the pleading can be sustained. Edwards v. State, 5 Okl.Cr. 20, 113 P. 214; McDaniel v. State, 8 Okl.Cr. 209, 127 P. 358; Wilsford v. State, 8 Okl.Cr. 535, 129 P. 80; Clark v. State, 11 Okl.Cr. 494, 148 P. 676; Ralston et al. v. State, 16 Okl.Cr. 634, 185 P. 831; section 2822, Comp.Stat.1921 [22 O.S.1941 § 1068].'

As hereinbefore set out, the case at bar was commenced on July 15, 1948 by filing an information and did not come on for trial until February 28, 1949. The defendant had ample time to object to the information but elected not to do so until after he had announced ready for trial. Under the procedure pursued by the defendant when he announced ready he waived his right to interpose an objection to the information by demurrer. After announcing ready for trial, if the defendant desired to test the sufficiency of the information as defining a public offense his relief was not by demurrer but was by motion objecting to the introduction of evidence at the time of trial or after judgment in arrest of judgment, all as provided in Title 22, § 512, O.S.A.1941, reading as follows: 'When the objections mentioned in Section 5791 appear upon the face of the indictment or information, they can only be taken by demurrer, except that the objection to the jurisdiction of the court over the subject of the indictment or information, or that the facts stated do not constitute a public offense, may be taken at the trial, under the plea of not guilty, and in arrest of judgment.'

This was the proper method of attack which the defendant did not elect to employ. He belatedly filed a demurrer, which right he had waived by going to trial. He failed to avail himself of the proper remedy by objecting to the introduction of evidence.

But the defendant in the case at bar may say 'I brought myself within the rule by obtaining leave to file a demurrer, and did file a demurrer'. The answer to this contention is apparent. Neither the trial court nor this court can change the statutory method of procedure prescribed by the legislature. As was said in Willis v. State, 64 Okl.Cr. 213, 78 P.2d 840, 842: 'It follows that we cannot consider the questions argued as to the insufficiency of the information because they were not raised as authorized by statute. This court cannot consider questions that were not raised in the trial court as authorized by statute, unless fundamental error prejudicial to the substantial rights of appellant is apparent. Harry v. State, 59 Okl.Cr. 302, 58 P.2d 340; Rhodes v. State, 58 Okl.Cr. 1, 49 P.2d 226; McGaugh v. State, 12 Okl.Cr. 96, 152 P. 140; Clark v. State, 11 Okl.Cr. 494, 148 P. 676.'

No fundamental errors prejudicial to defendant's substantial rights appear herein. The filing of the demurrer after announcing ready for trial was therefore a nullity and the defendant stood without a proper challenge to the information. He was in no better position than was the defendant in Gibson v. State, 85 Okl.Cr. 228, 186 P.2d 667, 668, wherein this court said: 'By a long line of decisions, it has been held that where the information has not been challenged by demurrer or motion to quash, and defendant pleads to the information and goes to trial, any objection to the sufficiency of the information should be overruled if by any intendment, inference or presumption, it can be sustained. Edwards v. State, 5 Okl.Cr. 20, 113 P. 214; Ex parte Spencer, 7 Okl.Cr. 113, 122 P. 557; Brown v. State, 33 Okl.Cr. 217, 242 P. 1065; Chamberlain v. State, 42 Okl.Cr. 410, 276 P. 507; Knight v. State, 48 Okl.Cr. 335, 291 P. 142; Smith v. State, 79 Okl.Cr. 151, 152 P.2d 279. * * *'

Further therein quoting from Price v. State, 9 Okl.Cr. 359, 131 P. 1102, 1104, it is stated: 'Under the old common-law doctrine of strictly construing criminal law and all proceedings in criminal cases, and that an indictment or information should be certain to a certain extent in every particular, the objection now urged in this information would undoubtedly be good. But these doctrines have long since been repudiated in the state of Oklahoma. It is true that an indictment should be reasonably certain as to the offense charged in order that the defendant may not be surprised and may be able to prepare to make his defense, and also to enable him to plead a judgment of acquittal or conviction in bar to a subsequent prosecution for the same offense. This is all that a defendant is in reason and justice entitled to. If an indictment is couched in such language as to enable a person of...